Makes the inability to pay child support an affirmative defense to non-support of child offenses, rather than an element of such offenses

1 Co-sponsor

• Diane J. Savino

BILL NUMBER:S2819

Title of bill

An act to amend the penal law, in relation to non-support of a child

Purpose

Requires a delinquent parent to demonstrate as an affirmative defense that the inability to pay excuses his or her failure to provide child support for their minor child.

Summary of provision

Section one amends sections 260.05 & 260.06 of the penal law by deleting the defendant's ability to pay from the definition of the offense found in such sections and adds to both sections a new provision that allows a defendant to show inability to pay as an affirmative defense.

Justification

Persons who are legally obligated to provide child support should not be permitted to escape criminal prosecution where they have deliberately taken action to avoid paying child support by engaging in wasteful personal spending and concealment of funds. Currently, parents guilty of the crime of non-support of a child may escape criminal liability simply because the prosecutor is tasked with proving the unknowable, that is, the parent's ability to pay. The ability to pay is an inherently subjective question which requires that the prosecutor submit evidence not only of the parent's income and spending but proof which distinguishes between legitimate expenses and wasteful spending. This amendment will rightly place the burden of proving inability to pay on the parent, who alone possesses the necessary information to answer that question.

Legislative history

2014: S.3847 - Passed Senate/A.7968 Referred to Codes 2012: S.2945 - Passed Senate. 2011: S.2945- Passed Senate. 2010: S.7004- Referred to Codes/A.10169- Referred to Codes

Fiscal implication

None.

Effective date

This act shall take effect on the first of November next succeeding the date on which it shall have become a law.